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Thursday, April 29, 2010

Prosperity Forum Discussion: Balanced Federalism

The Honorable Michael Waddoups, president of the Utah State Senate, presented and moderated participant discussion at the April 29, 2010 session of the Utah Prosperity Forum. Hosted by the Sutherland Institute, this session addressed “Why Balanced Federalism Is Good for Utah.”

“We’re involved in a cause that needs to be addressed in a committed fashion,” President Waddoups said. “We’re involved in a cause that’s going to save our nation.”

Other presenters included Robin Riggs, vice president and general counsel of the Salt Lake Chamber, and LaVarr Webb, publisher of the popular Utah Policy Daily and partner and founder of The Exoro Group.

Mr. Riggs, who served as legal advisor to former Utah Governor Michael O. Leavitt, observed that federalism is a legal concept, not a political one, noting that states do not have rights, but powers.

“The intent of federalism never was and never should be to protect the power of states,” he said. “It is to protect individual rights.”

Among the many reasons to promote balanced federalism, Mr. Riggs said, are four areas of society and business that flourish within such a system: decentralization, choice, mobility, and plurality.

In his presentation, President Waddoups observed that a recent poll conducted by the Pew organization found that among the Americans polled, 80% do not trust the national government. He also summarized an article he co-authored with the Honorable David Clark, Utah Speaker of the House, recently published in The Washington Post. In A modest proposal to the federal government: Let Utah do it, Utah’s legislative leadership recommended the federal government relinquish control of education, health care, and transportation in Utah to the state’s Legislature, as an experiment to verify that state and local governments can best provide for the needs of citizens residing in Utah.

Mr. Webb made concrete recommendations on how to effectuate the changes needed to restore the proper and necessary balance of power intended by the nation’s Founders.

“State legislators have the power to restore balance, and are really the only ones who do,” he said. “Congress will not relinquish powers back to the states on its own.”

He said it will take Senate Presidents and Speakers of the House of individual state legislatures to stand up and push back in order for real change to occur; in order to reestablish balanced federalism. Because bipartisanship is necessary to accomplish the goal of restoring that proper balance, Mr. Webb said this movement should focus on structural processes and not specific issues.

A recording of the entire session can be viewed online by clicking here.

Wednesday, April 21, 2010

Senator Urquhart: Openness & Tranparency

"Being elected does not make someone corrupt, and being unelected does not make someone pure.

". . . Mr. Burningham and Mr. Irvine are willing to impose great damage to Utah and its citizens, in order to replace conservative lawmakers with lawmakers simpatico to their political ideology. Because voters largely do not agree with their ideology, they are peddling a law that would remove me, Speaker Clark, the entire Washington County legislative delegation, and many other conservative legislators (based on our business owner/controller status) under the ruse of “ethics.” They are using the bait of "ethics," to reshuffle the political deck. I happen to think that ruse is very unethical and dangerous.

"And, by the way, should their initiative pass, I also could be removed from office for this exercise of my First Amendment free speech rights in opposing their efforts. And, who would decide my fate? Why, they would, of course. Mr. Burningham and Mr. Irvine, for life, without appeal, never standing before the people in an election nor answering to the people in their self-appointed, initiative-ratified, roles as Grand Inquisitors of all things ethical would be be the arbiters of ethics issues.

"Were any elected official ever to run legislation proposing to give himself/herself such an exalted, unaccountable, unchallengeable role, he or she would absolutely get . . . well, you get the picture. Yes, let's please take a deep look at ethics in Utah politics. And, please consider that the people screaming the loudest about the issue might be the ones most in need of watching."

Ryan White Funding

I have been really surprised at the sarcastic and negative messages I have received for what is perceived as the inhumane action of the Executive Appropriations Committee for failing to approve the grant in our last meeting. I wonder where are the mothers like mine that taught me that you get more flies with honey than vinegar but I am going to disregard the meanness of some of the comments and vote to approve the funding at our next meeting - as long as the questions raised can be answered satisfactorily.

Let me share some background for the committee action from my perspective that may better explain what happened than was reported in the news and blog world. First, we normally have Executive Appropriations once a month on the day before regular interim. Not only have we cut our wages as legislators and limited travel expenses, we also furloughed two months of legislative interim meetings to save money. Those months are April and July. We could not complete the approval of an RFP to study the economic advantages and disadvantages of privatizing the forensic units of the State Mental Hospital and the Developmental Center so we set that hearing before the Executive Appropriations Committee just before the Management Committee meets right after the session ends which ended up on April 6th.

The Management Committee must meet to review the requested items for interim study and assign them to the appropriate subcommittee so staff can be working on the agendas with the committee co-chairs. Executive Appropriations only has a few more members so we could hold the meetings the same day with very little additional costs to the State. Less than a week before the meeting, I suggested that we not only approve the RFP but that we also handle as many other items as possible because we would not be meeting again until mid May. One of the items added to the agenda was the review and approval of these grants. Because of the shortness of the time, we did not have time to send each member of the committee a list of the items so that they could review them before the meeting and raise any questions. When that was brought out during the presentation, we decided to not seek approval of any of the items until our first regular meeting which was mid-May.

I asked if there were any items that could not wait and that brought this onslaught that the Ryan White funding had to be done or people would die. No one had raised that issue and had I not in passing asked to do something other than the approval of the RFP; Executive Appropriations would not have even seen the list until then. The Governor’s office came up after and apologized that they had missed it as well. Dr. Sundwall reported back to our committee before we adjourned that he had money enough within his budget that he would see that no one was cut off from needed medication until we could meet and in the interim, he would have staff fully research the issues raised and answer them well before our next meeting.

True to his word, I have received that information and find it complete except for some concerns about what the new health care bill will do and I don’t think any one will fully know that for some months. In light of the circumstances, I thought we worked out a good solution and it became a non-problem.

I expect that in our meeting on May 18th that we will either approve the grant or have appropriate information on what our alternatives are and what each alternative means to the people who need this medication and to the Utah taxpayers whose money will be spent. We were told that this does involve a state match, for which we have already budgeted, and will require no new tax dollars unless there is a change within the new Federal law.

Wednesday, April 14, 2010

Don't shoot the messenger (electronically, or otherwise)!

Online signatures might be a great idea. They might not. That discussion needs to happen.

One thing is clear: current law would need to be modified. Right now the law requires paper and, more importantly, a witness to the signature. 20A-7-203, for example, asks for a direct personal verification of each signature. The person submitting each initiative packet certifies to the LG that they are a Utah resident, over 18 years old and that

"All the names that appear in this packet were signed by persons who professed to be the persons whose names appear in it, and each of them signed his name on it in my presence."

They also state that they believe the signer has entered the info correctly and is registered to vote (or will be by the initiative submission deadline). I don't know how you provide that human verification with an on-line petition. Clearly, the language would have to be modified or new structures put in place.

The subject is slated for study this year. Item 101 in the Master Study Resolution (SJR 15) directs the legislature to analyze the "Use of Electronic Signatures for Petitions." Specifically:

"To study whether electronic signatures should be used for initiative and referendum petitions (both statewide and local), political party petitions, and certificate of nomination petitions."

No other state allows electronic signatures on initiative petitions. Allowing it would be breaking new ground for the nation. If we go this direction, it's worth thinking it through and doing it right.

Thursday, April 08, 2010

The "Ryan White" Grant

The Deseret News Editorial on April 8 referred to an issue discussed in the Executive Appropriations Committee meeting held on April 7. As part of the discussion, President Waddoups brought up a concern regarding the Federal Funds/ARRA/Non-Federal Grants Reports. The "Ryan White" grant requires an investment of over $1.6 million in state monies in addition to the $3.4 million allocated by the federal grant. This program provides treatment and insurance coverage for low income Utahns with HIV/Aids-related problems. President Waddoups questioned whether or not the new National Healthcare plan, which was recently passed, would cover the 450 affected citizens currently receiving services. If so, the state of Utah would no longer need to pay the costs associated with this program. During the last legislative session, several cuts were made to the Health and Human Services budget. President Waddoups wanted to find out if this grant is the best use of budgeted money.

Dr. David Sundwall, Executive Director of the Utah Department of Health, will research this issue and give a report to the Executive Appropriations Committee in May.

The Deseret News Editorial indicates the Committee voted to stop the funding to the "Ryan White" grant and treatment would be stopped immediately. In reality, the funding has NOT been stopped and TREATMENT IS STILL BEING GIVEN. The Executive Appropriations Committee is continuing to study the issue and will make a decision after researching the questions raised and finding the best way to handle the situation.

Tuesday, April 06, 2010

Utah Law and Real ID

In 2005, the Republican-controlled Congress passed the “Real-ID Act” – which created national standards for driver’s license and identification cards. Opponents across the political spectrum have been resisting it for various reasons – it’s a privacy risk, is yet another unfunded mandate, and most importantly, the exercise of such federal power is not authorized by the constitution.

Starting in early 2007, states began passing both non-binding resolutions opposing the law, and binding legislation which nullified the act within the state borders. The latest to join resistance? Utah, and the current tally is 25.

House Bill 325 (HB325) has been signed by Governor Gary Herbert, and addresses the most glaring problems with the Real ID Act:

The Legislature finds that the United States Congress’ enactment of the REAL ID Act into law:

(a) is inimical to the security and well-being of the people of this state;(b) will cause unneeded expense and inconvenience to the people of this state; and(c) was adopted in violation of the principles of federalism contained in the Tenth Amendment to the United States Constitution.

The Utah legislature passed House Resolution 4 (HR4) in 2009, which was a non-binding resolution making clear that the legislature opposed the law. Supporters of HB234 see it as a logical follow-up to the resolution passed last year.

The bill prohibits the State from complying with the law:

(3) (a) The state may not participate in the implementation of the REAL ID Act.(b) The division:(i) may not implement the provisions of the REAL ID Act; and(ii) shall report to the governor any attempt by an agency or an agent of the United States Department of Homeland Security to secure the implementation of the REAL ID Act.

States were originally given until May 2008 to comply with the law, but widespread resistance resulted in the Federal Government changing that deadline not once, not twice, but three times.

Senator Christensen on the tobacco tax:

For Sen. Allen Christensen, R-North Ogden, who sponsored the bill and shepherded it through the state Legislature, it was always about personal health, not budget balancing.

"I never did care about the money, but in the end enough people did care about the money that kind of pushed it over the top," Christensen said. "I feel very strongly that I hate to impact a private business but it is their choice that they are selling this drug."

The tax, which covers cigarettes and chewing tobacco as well as cigars and pipe tobacco, is estimated to bring in roughly $44 million to the state for each of the next two fiscal years.

Wednesday, March 31, 2010

Senator Greiner: Negotiations failed, ending candidacy

After months of negotiations with the federal Office of Special Counsel regarding federal funds, that represent less than 1% of the annual Ogden Police Department budget, and trying to find a compliance program, previously decided in recent case law, acceptable to the needs of the office of Special Counsel, and being able to find nothing -- I have been advised by my legal counsel to withdraw my Declaration of Candidacy for the Senate District #18 of the State of Utah for the year 2010. Today, March 31, 2010, I did such at the Utah Lieutenant Governor’s office.

Our founding fathers would probably roll over in their graves at the notion that a part time state or local citizen legislator would be denied his or her 1st amendment rights and all voters would be denied their rights by a 70 year old act of Congress that was originally passed to curb the currying of partisan political favor for federal employees.

This act today, the Hatch Act, not only has the potential for significantly lesser civil penalties for federal employees than state and local workers it doesn’t even require an act of political currying. It only requires that there may exist a potential of partisan political currying for any federal grant or loan anywhere in an organization that accepts federal money, of any amount, as determined by the Office of Special Counsel.

I apologize to the citizens of Ogden City, Utah and to the elected leadership of Ogden City for the embarrassing course this locally, legally misunderstood process has taken over the last four years.

Monday, March 29, 2010

2010 Key Ethics Reform Legislation

What ethics policy changes did the legislature enact in 2010?

Here's a quick summary:

H.J.R. 15, Joint Resolution on Legislative Ethics Commission- establishes in the Utah Constitution a legislative ethics commission. The legislative ethics commission will have authority to conduct an independent review of complaints against legislators alleging unethical legislative behavior. The purpose of the review is to determine whether the complaint merits further consideration by the house of the member against whom the complaint is made. The commission will make recommendations to the Legislature about how to handle complaints alleging unethical behavior.

As the founders intended, the House and Senate will continue to be accountable for determining whether one of their members has engaged in unethical behavior and, if so, the appropriate sanction.

Under this resolution, the ethics commission will consist of five members, none of which may be a sitting legislator or registered lobbyist.

A complaint may be filed for breach of the Legislative Code of Conduct or a conviction or plea of guilty/no contest to a crime of moral turpitude. The complaint must be filed by two registered voters, one of whom must have first-hand knowledge of the allegation. It can also be filed by two Senators or Representatives with affidavits/evidence attached for each allegation. A list of requested witnesses is attached to the complaint.

A technical review of the complaint by the chairs of the Independent Legislative Ethics Commission would follow. The complaint cannot be filed within 60 days of the respondent standing for election, and cannot re-file a previously heard allegation unless there is new evidence. The respondent will have the chance to file a response.

If the complaint meets the technical filing requirements, the review by the Independent Legislative Ethics Commission would go as follows:

Hearing is closed to the public

Commission must give public notice that they are meeting to review an ethics complaint

Complaint is private (if the complaint or its information is released, the complaint is dismissed, but can be refiled)

Hearing structure is similar to a trial (testimony of witnesses/cross-examination, etc.)

Each allegation that is proved (4 out of 5 vote that the allegation is supported by a preponderance of the evidence) is forwarded to the House or Senate Legislative Ethics Committee for their action. The commission would publicly release a report that included complaint and response on the proved allegations, plus findings which include votes and comments on the proved allegations.

The review by the House or Senate Ethics Committee would go as follows:

Hearing is conducted in public

Hearing structure is similar to the commission’s review

Committee deliberates in private after hearing evidence and testimony

Committee releases findings on all allegations reviewed (the vote on each allegation and comments as well as recommendations to the House or Senate for disciplinary action on proved allegations.

Each allegation that is proved (proof means a majority of the committee votes that the allegation is supported by a standard of clear and convincing evidence) is forwarded to the entire House or Senate. At this point, the House or Senate can vote to Discipline/Censure a legislator (which requires a majority vote) or Expel them from the body (which requires a 2/3 vote).

Senate Joint Resolution 19 - Joint Rules Resolution on Ethics Complaints clarifies SJR 3. To remove possible criticism about the process, this bill requires any new ethics complaints to go directly to the Independent Legislative Ethics Commission rather than going through the Senate or House legislative ethics committees first. In my previous bill, the legislative ethics committee chairs served as the gatekeepers during the filing period. However, I believe we want to make the commission truly independent by giving them the primary authority to investigate ethics complaints against members of the legislature.

Along with the change in the initial filing, this resolution also provides that the chair of the commission will provide notice of a filing of an ethics complaint – confidential, no names or details until publicly disclosed by the commission – to the Speaker of the House or the Senate President as well as the chair and vice-chair of the legislative ethics committee.

As we've learned, there's a dark side of campaign politics - particularly from some who don't feel they can win at the ballot box. The next two bills are associated with SJR3, to help assure frivolous, deceitful or politically opportunistic complaints will not damage the reputations of the innocent. Sorry, ________ (you know who you are) we know that takes some of the fun out of your campaign work.

S.B. 138 - Grama Revisions Related to Review of Ethics Complaints - This legislation further depoliticizes the review of ethics complaints by allowing records related to review of specific ethics complaints to be classified as private, but allows any other document to be classified as public by legislative rule. It's worth noting that these documents were already private -- this revision opens it up somewhat.

H.B. 267- Lobbyist Disclosure and Regulation Act Amendments– This bill requires the disclosure of an expenditure greater than $10. A lobbyist, principal or government officer (not a legislator) is prohibited from making an expenditure on behalf of a legislator greater than $10 except for food, a beverage, travel, lodging, or attendance at a meeting or activity (which must be disclosed). This bill also adds definition to many terms, providing clarity.

Candidates for the Legislature, state constitutional offices, and the State Board of Education are required to file the same financial disclosure form at the time they file a declaration of candidacy. Here is an example of the form. With this legislation, the information must be available to the public via the internet.

H.B. 124 - Campaign Funds Expenditure Restrictions- This bill prohibits a candidate or officeholder from spending campaign funds on personal items (that primarily furthers a personal interest of a candidate or officeholder and is NOT connected with the candidacy or office) from campaign contributions. It also provides a list of authorized and prohibited uses of campaign contributions.

This bill authorizes the Lieutenant Governor to enforce this prohibition with a fine equaling 50% of the expenditure and forcing the return of 100% of the expenditure to the candidate’s campaign account.

H.B. 329 – Campaign Finance Amendments – This bill adds to the filing requirements for a candidate during a campaign. It also requires a person sponsoring certain electioneering communications (third party campaigning either supporting or opposing) to file a report. A corporation must disclose a contract with the state in excess of $100,000. This bill also prohibits someone from making a campaign contribution in another person’s name. If one does not file a timely financial statement, removal from the ballot and a fine would be imposed by the Lieutenant Governor’s office.